Tyler v. Harmon Brief on Application for Re-Hearing

    No. 26,948

SUPREME COURT OF LOUISIANA
Appeal From the Civil District Court, Parish of Orleans, 

No. 154,733, Division “A,” Honorable Hugh C. 
Cage, Judge.

JOSEPH W. TYLER,
Plaintiff and Appellant,

verms
BENJAMIN Or BEN HARMON,

Defendant and Appellee.

Original Brief on Application for Re-Hearing.

LOYS CHARBONNET,
F. F. TEISSIER,
F. B. SMITH,

Attorneys for Defendant and Appellee.

Andree Printery, Inc., 320-322 Ezchsnr* Place.



No. 26,948

SUPREME COURT OF LOUISIANA
Appeal From the Civil District Court, Parish of Orleans, 

No. 1S4,733, Division “A,” Honorable Hugh C. 
Cage, Judge.

JOSEPH W. TYLER,
Plaintiff and Appellant,

versus

BENJAMIN Or BEN HARMON,
Defendant and Appellee.

Original Brief on Application for Re-Hearing.

May It Please the Court:
Plaintiff and appellant prayed for the issuance of a rule 

nisi, and thereafter for a permanent injunction, enjoining 
and restraining defendant and appellee from converting 
his single cottage, No. 232 Audubon Street, New Orleans, 
La., into a double cottage, and more particularly from 
renting any side thereof to negro tenants, upon the follow­
ing allegations:



That plaintiff and appellant is a citizen and taxpayer of 
the City of New Orleans; that his property is situated in 
what is known as a white community (giving the particu­
lars from which that conclusion is drawn) as defined by 
Act 117 of 1912, Act 118 of 1924 and Sections Nos. 2, 3 
and 5 of Ordinance No. 8037, Commission Council Series, 
adopted September 18th, 1924; that defendant and appellee 
is about to convert his own home into a double house with 
a view of renting one side thereof to negroes, without the 
consent of the majority of the white race inhabiting that 
community, as required by said acts and ordinance; and 
that, unless defendant and appellee is restrained, other 
negroes will establish home residences in that community 
to the irreparable injury of plaintiff and appellant

The learned Judge a, quo issued a rule nisi. Defendant, 
averring under oath, that he was a citizen of the Ihnited 
States, filed the following exceptions:

1. That plaintiff’s petition and the relief sought 
by him disclosed no right or cause of action.

2. That Act 118 of 1924 is null, void, illegal and 
unconstitutional, in that the object of that statute 
is not expressed in its title as required by Article 3, 
Section 16, page 8, of the Constitution of 1921.

3. That Act 117 of 1912, Act 118 of 1924, and 
Ordinance No. 8037, Commission Council Series, New 
Orleans, adopted September 18th, 1924, are uncon­
stitutional, null, void and of no effect, because they 
violate the Fourteenth Amendment of the Constitu­
tion of the United States in that they seek to de-



s
prive exceptor of the right to dispose of his prop­
erty,, or to lease it, to a constitutionally qualified 
person, on the sole ground of race or color.

The Judge a quo maintained the third of the above ex- 
eeptions, recalled the rule nisi and dismissed plaintiff and 
appellant’s suit. Plaintiff then appealed. Defendant an­
swered the appeal and prayed that the judgment appealed 
from be amended by maintaining all of his exceptions and 
that, as thus amended, said judgment be affirmed.

Your Honors, on March 2nd, 1925, reversed the said 
judgment and held that said statutes and ordinance were 
legal, valid and constitutional. Within the legal delays, on 
March 14th, 1925, defendant and appellee asked for a re­
hearing, upon the grounds enumerated by him in his said 
application. We will now discuss those errors.

ERROR NO. 1.

The Court erred in not maintaining the exception of 
mo right or cause of action. In so far as plaintiff sought 
relief under Act 117 of 1912.

Plaintiff and appellant, it will be noted, from a reading 
of his petition, alleged that the defendant and appellee had 
not secured the written consent of a majority of the white 
race inhabiting such community or portion of the city to 
be affected, and therefore, had not filed such written, con­
sent with the Mayor of New Orleans. It will be noted, 
further, that there is no allegation. In the petition, to 
the effect that the permit was not actually gjiven to the



defendant by the City of New Orleans to convert hi® 
former single cottage, at No. 232 Audubon Street, into 
a double house, with a view of renting one side thereof 
to negro tenants.

Act 117 of 1912, one of the acts relied on by plaintiff 
and appellant, and referred to in paragraph seven of his 
petition, provides in Section 1 thereof, that the

“Various municipalities of this State shall have 
the right to withhold building permits to such 
persons as seek to build and construct negro houses 
in a "white community or portion of such muni­
cipality inhabited principally by white people, and 
to withhold building permits to those who seek to 
build houses for white people in a negro community 
of such municipality, except on the written consent 
of a majority of those belonging to the opposite 
race inhabiting such community or portion of the 
city to be affected.”

Section 3, of the same Act, provides:
“That any firm, corporation or individual violat­

ing the provisions of this Act by building or con­
structing such houses without a permit from the 
municipal corporation where located, shall on con­
viction be fined, etc.”

A mere reading of the sections, above quoted, of Act 
117 of 1912, shows that municipalities have discretion as 
to whether a permit shall or shall not be given. If a 
permit be given for the erection of a house, covered by 
the act, there is no violation of the Act, as the act itself.



provides a penalty for the “building or constructing of 
such houses without a permit.”

“The general rule is, that, where legislative or 
discretionary powers are conferred upon municipal 
corporations, the courts will not interfere, unless 
in the exercise of such discretion, there is fraud, 
manifest oppression, or gross abuse * * * . The 
courts will not restrain, control or coerce the action 
of a municipal corporation on the ground that it 
is merely extravagant, or erroneous, or a mistake 
of judgment.”

Taxpayers r. Sewerage Co., 108 La. 583.
Dupuy r. Police Jury, 115 La. 579.
Bernard v Drainage District, et at, 130 La. G37.

Good faith is always presumed, and a violation of the 
law is never assumed.

“ Tt is,’ said this Court, ‘one of the first prin­
ciples of justice not to presume that a person has 
acted illegally.’ ”

Succession of Herber, 117 La. 242.
Succession of Navarro, 24 Ann. 298.
Jones V . Squire, 137 La. 892.

Since, as we have already shown, that muncipal cor­
porations have the discretion, under Act 117 of 1912, as 
to whether or not a building permit shall or shall not be 
granted; since, as we have also already shown, there is no 
violation of the provisions of the Act, unless the building 
covered by the Act, is attempted to be erected without a 
permit; and since, as we have further already shown, no 
one is presumed to violate the law, the petition, in this



case, in order to disclose a cause of action, conceding’? 
merely for the purpose of argument, that Act 117 of 1912, 
is constitutional, should have alleged that the building in 
question was erected or attempted to be erected without a 
permit from the municipal authorities.

“The plaintiff must allege the existesce of all con­
ditions necessary to liability.”

Monroe Mfg. Co. v. Town, 146 La. 642.
“Pleadings are construed strictly against the 

pleader, for the reason that the pleader must be 
assumed to have stated his case as strongly as he 
could.”

Arthur v. Lumber Co., 143 La. 209.
Tread/Wag v. Lumber Co., 142 La. 924.
“The court cannot take judicial cognizance of 

facts in a case, but they must be alleged.”
Monroe Co. v. Town, 146 La. 642.
“The rule which imposes the burden of pleading 

upon him for whose interest the proof should be 
made suffers exception when the plaintiff’s right 
rests on the showing that the defendant has been 
guilty of wrongdoing. Hence, where a universal 
legacy is attacked, on the ground that the legatee is 
a ‘minister of religious worship’ who professionally 
attended the testatrix in her last illness, and that 
the will was made during that period, the petition 
discloses no cause of action, in the absence of allega­
tion that there was no tie of consanguinity between 
the testatrix and the legatee.”

Succession of Berber, 117 La. 239.
Cross on Pleadings, p. 116.
Lotirie v. Titcomb, 139 La. 10.



In view of the fact that the petition does not allege that 
the defendant is building or attempting to build the dwell­
ing in question, for the purpose of renting it to a negro, 
without a permit from the municipal authorities, the 
petition discloses no right or cause of action, in so far as 
it is based on Act 117 of 1912.

Your Honors holding that
“The statute (Act 117 of 1912) gives to the 

Commission Council of the City of New Orleans, 
the authority to enact such ordinance as the ona 
on which this suit is founded,”

is, it is respectfully submitted, not a proper construction 
of that statute. As already seen, that statue provides 
that the

“Various municipalities of this State shall have 
the right to withhold building permits,” etc.,

and that there is no violation of that Act unless a build­
ing is attempted to be built “without a permit.”

The fact that plaintiif may or may not disclose a cause 
of action, under Act 118 of 1924, or under Ordinance No. 
8037, Commission Council Series, will not give plaintiff a 
cause of action under Act 117 of 1912. This being so, you 
should have maintained the exception of no right or cause 
of action, in so far as plaintiff and appellant sought re­
lief, under Act 117 of 1912.

“In case a petition contains two distinct demands, 
one of which discloses a cause of action and the



8

Other does not, the latter may, on exception, be dis­
regarded and the cause permitted to go to judge­
ment on the remaining issue in the district court.”' 

Wisner v. Rohnert, 46 Ann. 1234.
“A peremptory exception founded on law may be 

filed at any time during the progress of the case, 
either before or after issue joined, and if well taken^ 
as to part of the demand it may be sustained to 
that extent in advance of the trial of the merits or 
even during the trial.”

Succession of Curtis, 156 La. 243.

It is therefore submitted that your Honors erred in not 
maintaining the exception of no right or cause of action, 
in so far as Act 117 of 1912 is concerned.

ERROR NO. 2.

The Court erred in not maintaining the exception 
that Act 118 of 1924 is null, void, illegal and uncon­
stitutional, in that the object of that statute is not ex­
pressed in its title, as required by Article 3, Section 16, 
page 8, of tbe Constitution of 1921.

In view of the fact that you gave no reasons for holding 
that the title to Act 118 of 1924 did not violate Section 16, 
Article 3, of the Constitution of 1921, we do not know 
what process of reasoning you adopted in coming to your 
conclusion. Because of that fact, we will reargue the 
point as we appreciate it.

Article 3, Section 16, page 8, of the Constitution of 
1921, reads:



9

“'Every law enacted by the Legislature -shall em­
brace but one object and shall have a title indica­
tive of such object.”

The purpose of the title, in a statute or act of the 
Legislature, is to indicate to a person of average intelli­
gence, what is contained in the body of the act.

"And the well understood purpose of those pro­
visions is that the title of a law, as read in the 
general assembly and as published to the world, 
shall convey to those who may hear it read, or read 
it, a reasonably correct and adequate idea of the 
general character of the legislation covered by it, 
and shall not mislead, surprise or confuse such per­
sons, or others, into supporting or acquiescing in 
the enactment of a law concerning which they are 
wholly misinformed, or uninformed, or which deals 
with a variety of subjects which may be unrelated 
to each other and incongruous.”

State V . Buylston, 138 La. 28.
The title of Act 118 of 1924 is :

“An act relative to negro and white communities 
in municipalities having a population of more than 
25,000.”

The adjective “relative” is defined by the Standard Dic­
tionary of the English Language, 1895 Edition, Volume 
II, p. 1505, as;

“Characterized by relation or reference to some­
thing; having connection; relevant; pertinent.”

Could the average mind, under such a title, conclude 
that that act, in its body, would require the written con-



10

sent of a majority of property holders before a person, 
white or negro, could establish a home-residence in that 
locality, in the event that that locality be inhabited, as 
the case might be, by white or colored persons? Could 
even the trained legal mind conceive, on hearing the title 
to the act in question read, in the Legislature, that a per­
son white or colored, who would own, in his own name 
vacant lots, in municipalities of more than 25,000 inhabi­
tants, at the time that that act went into effect, could not 
build a home—residence in the event that the majority of 
property owners of the opposite race should object to his 
doing so? We answer both of our questions in the nega­
tive. The most that that title could indicate, to a layman 
or to a trained lawyer, is that some law was being enacted 
“concerning” negro and white communities. Yet, the act, 
attempted to make it unlawful for a person, white or 
colored, irrespective as to the time that he may have ac­
quired his lot or lots of ground, in a certain neighborhood, 
to erect a home residence thereon, without the written con­
sent of a majority of the property holders of the opposite 
race.

Your Honors had occasion, in the case of State v. Walker, 
105 La. 493, to consider

An act making it a misdemeasor to issue trad­
ing stamps or other devices,”
and you held that:

The title of Act 35 of 1900, is both inadequate 
and misleading and fails to express the object of



li

any proTision in the act which is susceptible of 
independent enforcement. The act, therefore, con­
travenes Article 31 of the Constitution and is void.”

I t  is therefore submitted that Act 118 of 1924 is un­
constitutional, null and void, in that the title to that act 
does not indicate the object of the act as required by Sec­
tion 16, Article III, page 8, of the Constitution of 1921. 
It is further submitted that you erred in not so holding, 
and in also holding that it was immaterial whether that 
act was unconstitutional or not, as plaintiff would have a 
cause of action under Ordinance 8037, Commission Coun­
cil Series, if the latter ordinance was valid. You erred 
in so holding because of the fact that Ordinance No. 8037, 
Commission Council Series, states, in its preamble, that 
it derives its authority from Act 118 of 1924; and because 
of the further fact that plaintiff specially relies on that 
Act as a ground for the relief which he seeks.

ERROR NO. 3.

The Court erred in not holding that Act 117 of 1912, 
Act 118 of 1924, and Ordinance No. 8037, Comtnission 
Council Series, New Orleans, adopted September 18th, 
1924, are unconstitutional, null, void and of no effect, 
because they violate the Fourteenh Amendment of the 
Constitution of the United States, in that they seek to 
deprive exceptor of his property without due process 
of law by attempting to deprive him of the right to dis­
pose of it or to lease it to a constitutionally qualified 
person, on he sole ground of race or color.



12

Your Honors have held those acts and that ordinance 
constitutional by, it is respectfully submitted, an unsuc­
cessful differentiation of Buchanan v. Warley, 245 U. S, 
60, from the present issues, and by erroneously holding 
that Plessy v. Furgeson, 163 U. S. 537, was in point.

The point in this case is not whether or not a negro 
is or is not the social' equal of a white man, hut solely 
and exclusively whether or not a State or municipality 
can deprive a white man or a negro, on the sole ground 
of race or color, of the right claimed by him to live in 
a certain locality, notwithstanding the fact that the 
owner of that property is willing to sell or to lease it to 
him for the purpose of residing there. LET US, THERE­
FORE, NOT OVERLOOK OR CONFUSE THE SOLE 
QUESTION BEFORE THE COURT BY INJECTING THE 
MATTER OF SOCIAL EQUALITY WHICH HAS NOTH­
ING TO DO WITH THE CASE.

“These enactments (the Thirteenth, Fourteenth 
Amendments and Acts of Congress carrying these 
amendments into effect) did not deal with social 
rights of men, but with those fundamental rights 
in property, which it was intended to secure upon 
the same terms to citizens of every race and color,” 

Buchanan v. Warley, 245 U. S. 60, at p. 79.

The Fourteenth Amendment to the Constitution of the 
United States made all persons born or naturalized in the 
United States, citizens of the United States and of the 
State in which they reside, and provided that no State 
shall make or enforce any law which shall abridge the



15

privileges or immunities of citizens of the United States, 
and that no State shall deprive any person of his life, 
liberty or property without due process, nor deny to any 
person the equal protection of the laws.

To carry the Thirteenth and Fourteenth Amendments of 
the Constitution of the United Sates into full operation, 
Congress enacted the following statutes;

“All citizens of the United States shall have the 
right in every state and territory, as is enjoyed 
by white citizens thereof to inherit, purchase, 
lease, sell, hold and convey real and personal prop­
erty.”

The Act of Congress enacted in 1866 (Chapter 
31, Section 1, 14 Stat. at, L., 27, Comp. Stat. 
1916, Section 3931).

“All persons within the jurisdiction of the United 
States shall have the same rights in every State 
and Territory to make and enforce contracts, to 
sue, be parties, give evidence, and to the full and 
equal benefit of all laws and proceedings for the 
security of persons and property as is enjoyed by 
white citizens, and shall be subject to like punish­
ment, pains, penalties, taxes, licenses and exactions 
of every kind, and no other.”

Act of Congress of 1870 (Chapter 114, Section 
16, 16 Stat. at L., 144, Comp. Stat. 1916, Sec­
tion 3925).

Long before Buduman v. W\arley was decided, the Su­
preme Court of the United States, in the case of Holden 
V. Handy, 169 U. S. 366, at p. 391, had held:



14

“As to the possession of property, of which a 
person cannot be deprived, doubtless implies that 
such property may be acquired, it is safe to say 
that a state law, which undertakes to deprive any 
class of persons of the general power to acquire 
property would be obnoxious to the same provision."

Again, in Buchanan v. Warley, 245 U. S. 60, at p. 74, 
we find the same thought expressed in clear and forceful 
language as follows:

“The Federal Constitution and laws passed within 
its authority are, by the express terms of that stat­
ute, made the supreme law of the land. The 14th 
amendment protects life, liberty and property from 
invasion by the state without due process of law. 
Property is more than the mere thing which a 
person owns. It is elementary that it includes the 
right to acquire, use and dispose of it. The Con­
stitution protects these essential attributes of 
property. Holden v. Hardy, 169 U. S. 366, 391. 
Property consists of the free use, enjoyment, and 
disposal of a person’s acquisitions without control 
or diminution save by the law of th land.”

A: pages TS and 79 of the same decision, we read:
"Colored persons are citizens of the United States 

and have the right to purchase propertj- and enjoy 
and use the same without laws discriminating 
against them solely on account of color.”

In the case of Hail r. Decuir, 95 U. S. 485, at p. 508, it 
was held:

“Colored persons, it is admitted, are citizens, and 
that citizens without distinction of race or color, or



15

previous condition of servitude, have the same right 
to make and enforce contracts, to sue, be parties 
and give evidence, to inherit, purchase, lease, sell, 
hold and convey real and personal property and to 
full and equal benefit of all laws and proceedings 
for the security of personal property, as are en­
joyed by white citizens.”

It is, therefore, patent, that the right of a white man to 
buy property and to live therein and for a negro to pur­
chase property for the same purpose is a property right 
and not a social right, and that the Fourteenth Amend­
ment to the Constitution of the United States guarantees 
such property right to each of them. Any attempt, there­
fore, by a state, or by a municipality to deprive a citizen 
of the United States, whether of the white or of the col­
ored race, on the sole ground of color, of that property 
right is null, void, unconstitutional and of no effect. The 
case of Buchanan v. Warley, 245 U. S. 60, unqualifiedly so 
holds.

Buchanxm v. Warley, 245 U. S. 60, at pp. 74 and 75, 
disposed of the zoning ordinances, referred to by your 
Honors, in your opinion, with the following comment;

True it is that dominion over property springing 
from ownership is not absolute and unqualified. The 
disposition and use of property may be controlled, 
in the exercise of the police power, in the interest 
of the public health, convenience, or welfare. Harm­
ful occupations may be controlled and regulated. 
Legitimate business may also be regulated in the 
interest of the public. Certain uses of property may



16

be confined to portions of the municipalities other 
than the residence district, such as livery stables, 
brick yards, and the like, because of the impairment 
of the health and comfort of the occupants of neigh­
boring property. Many illustrations might be 
given from the decisions of this court and other 
courts, of this principle, but these cases do not 
touch the one at bar.”

The proposition, which your Honors assert in your opin­
ion, that there is no denial of the equal protection of the 
laws, in the statutes and ordinance, now before you, for 
consideration, because they apply with equal force and 
effect to the white man and to the colored man is unsound, 
in this particular case. It having been shown that the 
Fourteenth Amendment of the Constitution of the United 
States gives the right to a white man to own property, to 
use it, and to dispose of it, if he sees fit, and that the col­
ored man, under the same amendment, enjoys the same 
right, it is a fallacy to assert that they both enjoy the 
equal protection of the law when a statute or an ordinance 
deprives them both, on the sole ground of race or color, of 
that property right. In other words, your holding that there 
has been an equal protection of the laws, in this case, is 
tantamount to holding that there has been an equal pro­
tection of the laws, where two people, similarly situ­
ated, have both been deprived of their constitutional 
rights. Such doctrine, it is respectfully submitted, is un­
sound and we have been unable to find any reported case 
which asserts it.



17

You use the following language on pages 12 and 13 of 
your opinion:

“Although we cannot quite reconcile our judg­
ment in the present case with all that is said 
in Buchanan v. Warley, the two cases may be dis­
tinguished in this, that in Buchanan v. Warley, the 
Court found, as a fact, that the ordinance of the 
City of Louisville, which the Court declared viola­
tive of the Fourteenth Amendment, forbade a white 
person to sell property in a neighborhood of white 
persons, to a colored person, and forbade a colored 
person to sell property in a colored neighborhood to 
a white person. And it was on that finding of in­
terference with the freedom of contract that the 
Court declared the ordinance unconstitutional *

“Those reasons, for which the ordinance of the 
City of Louisville was declared unconstitutional, are 
not pertinent to the statutes of Louisiana or to the 
ordinance of the City of New Orleans, which we 
have before us. There is nothing in either of the 
statutes or in the ordinance forbidding a white man 
to sell his property to a colored man, or forbidding 
a colored man to sell to a white man in any com­
munity or neighborhood. * *

“But, if a white man buys or takes a lease upon 
property in a colored neighborhood, or if a colored 
man buys or takes a lease upon property in a white 
neighborhood, knowing that the law of the state or 
municipality puts certain restrictions upon his right 
to reside in a neighborhood, ‘he has no right to com­
plain or to charge that there is discrimination 
against him because of his color.”



18

The agreement in the case of Buchanan v. Warley is 
to be found on pages 69 and 70 of the opinion, and reads 
as follows:

“It is understood that I am purchasing the above 
property for the purpose of having erected thereon 
a house which I propose to make my residence, and 
it is a distinct part of this agreement, that I shall 
not be required to accept a deed to the above prop­
erty or to pay for said property unless I have the 
right, under the laws of the State of Kentucky and 
the City of Louisville, to occupy said property as a 
residence.”

The Supreme Court of the United States, therefore, in 
that case, had to deal with the legal right guaranteed un­
der the Fourteenth Amendment to the Constitution of the 
United States of the owner of property to sell it to a con­
stitutionally qualified person, and also with the right of a 
constitutionally qualified person to purchase that property 
for the specific purpose of occupying it himself as a home 
residence or dwelling. It also had to decide whether or not 
such persons could be deprived of the said right granted 
to them on the sole ground of race or color.

That the Court, in the case of Buchanan v. Warley, did 
pass upon the question of the right of the occupancy of the 
property in question appears from the following excerpts 
from the opinion:

“The concrete question here is: May the occu­
pancy, and, necessarily, the purchase and sale of 
property of which occupancy is an incident, be in­
hibited by the state or by one of its municipali-



19

ities, solely because of the color of the proposea oc­
cupant of the premises. That one may dispose of 
his property, subject only to the control of lawful 
enactments curtailing that right in the public inter­
est, must be conceded. The question now presented 
makes it pertinent to inquire into the constitu­
tional right of the white man to sell his property 
to a colored man, having in view the legal status 
of the purchaser and occupant.”

Btichanan v. Warley held the Louisville ordinance un­
constitutional, although at the time that the said agree­
ment was entered into, the said ordinance was in existence 
and in full force and operation.

Btichanan v. Warley quotes the Louisville ordinance, as 
follows:

“By the first section of the ordinance it is made 
unlawful for any colored person to move into and 
occupy as a residence, place of abode, or to establish 
and maintain as a place of public assembly, any 
house upon any block upon which a greater num­
ber of houses are occupied, as residences, places of 
abode or places of public assembly by white people 
than are occupied as residences, places of abode, or 
placed of public assembly by colored people.

“Section two provides that it shall be unlawful 
for any white person to move into and occupy as a 
residence, place of abode, or to establish as a place 
of public assembly, any house upon any block upon 
which a greater number of houses are occupied as 
residences, places of abode or places of public as­
sembly by colored people than are occupied as resi-



20

dences, places of abode or places of public assembly 
by white people.”

Page 71 of the Opinion.

The following language is found on page 73 of that 
opinion:

“This ordinance prevents the occupancy of a 
lot in the City of Louisville, hy a person of color, 
in a block where the greater number of residences 
are occupied by white persons; where such a ma­
jority exists, colored persons are excluded.”

The Louisville ordinance, which was thus interpreted by 
the Supreme Court of the United States, and held uncon­
stitutional, did not therefore, as held by you, prevent the 
sale of property in white neighborhoods to colored peo­
ple or in colored neighborhoods to white people. The pro­
hibition was exclusively against the residing of white per­
sons in colored neighborhoods and of colored persons in 
white negihborhoods, without the permission requested 
and obtained from those of the opposite race. Therefore, 
the ordinances are identical in purpose and almost identical 
in language. The present case cannot and should not be 
differentiated from the Louis\’ille case as it is respect- 
fullj' submitted, your Honors attempted to do by stating 
that the ordinances are not the same. It is respectfully 
subntitted that they are identical.

The case ot f ’.cssjt r. Fygust'w. 163 U. S. 537. which you 
cite as conuviliag. is disposed of. as foreign to the issue, 
by the Supreme Court of the United States, in the case 
of Buchanan r. WarUy,. 245 U. S. 60. at p. 79, as follows:



21

“The defendant in error insists that Plessy v. 
Fergtoson, 163 U. S. 537, is controlling is principle 
in favor of the judgment of the court below. In 
that case this court held that a provision of a statute 
of Louisiana requiring railway companies carrying 
passengers to provide in their coaches equal but 
separate accommodations for the white and colored 
races did not run counter to the provisions of the 
Fourteenth Amendment. It is to be observed that 
in that case there was no attempt to deprive persons 
of color of transportation in the coaches of the pub­
lic carrier, and the express requirement were for 
equal though separate accommodations for the 
white and colored races. In Plessy v. Ferguson, 
classification of accommodations was permitted 
upon the basis of equality for both races.”

The court, in Buchanan v. Warley, at pages 79 and 80, 
cited with approval, the following:

“In Carey v. Atlanta, 143 Ga. 192, the Supreme 
Court of Georgia, holding an ordinance, similar in 
principle to the one herein involved, to be in­
valid, dealt with Plessy v. Ferguson and the Berea 
College case in language so apposite that we quote 
a portion of it:

“ Tn each instance the complaining person was 
afforded the opportunity to ride, or to attend in­
stitutions of learning, or afforded the thing of 
whatever nature to which in the particular case he 
was entitled. The most that was done was to require 
him, as a member of a class, to conform with reas­
onable rules in regard to the separation of the 
races. In none of them was he denied the right



22

to use, control, or dispose of his property as in 
this case.*

“ * * * The effect of the ordinance under considera­
tion was not merely to regulate a business or the 
like, but was to destroy the right of the individual 
to acquire, enjoy and dispose of his property. 
Being of this character, it was void as being opposed 
to the due process clause of the constitution.”

Brushing aside, finally, all further reference to Plessy 
». Ferguson, the Court, is Buchaman v. Worley, says:

“As we have seen, this Court has held laws valid 
which separated the races on the basis of equal 
accommodations in public conveyances, and Courts 
of high authority have held enactments lawful 
which provide for separation in the public schools 
of white and colored pupils where equal privileges 
are given, but, in view of the right secured by 
the Fourteenth Amendment to the Constitution, 
such legislation must have its limitations, and 
cannot be sustained where the exercise of au­
thority exceeds the restraints of the Constitution. 
We think these limitations are exceeded in laws 
and ordinances of the character now before us.”

At page 81 of the Opinion.

It is one thing for a white man or a negro to be told 
that, in order to avail himself of the accommodations of a 
public carrier, or to receive education, at the hands of the 
State, he must abide by the rules and regulations of the 
carrier or of the State, provided that the rules and regula­
tions apply equally to both of them. The property in both 
of these cases is that of another. It is an entirely different



23

matter, however, when the State or a municipality tries to 
interfere with a property right of a white man or of a negro, 
such as the right to own, use, and dispose of real estate, 
on the sole ground of race or color. In the latter case 
the white man or the negro, as the case may be, is at­
tempted to be deprived of a constitutional right guaran­
teed to him by the Fourteenth Amendment to the Consti­
tution. It is, therefore clear, on principle, wihout even 
the authority of Buchanan v. Warley, 245 U. S. 60, of 
Carey v. Atlanta, 143 Ga. 192, of Glover v. City of Atlanta, 
148 Ga. 825, and of Brown v. City of Atlanta, No. 4339 of 
the Supreme Court of Georgia, not as yet reported, that 
Plessy V . Ferguson has no application. Eliminating, how­
ever, mere arguments, Buchanan v. Warley, the latest case 
on the subject, in so far as the Supreme Court of the 
United States is concerned, positively states that Plessy 
V . Ferguson is not in point. Buchanan v. Warley is the 
law today on the question now before you.

It is well, to bear in mind, that Chief Justice White was 
a member of the Court when the case of Plessy v. Ferguson 
was decided, and that he was its honored Chief Justice at 
the time that Buchanan v. Warley became the law of the 
land. Certainly he was familiar with the principle of law 
enunciated in Plessy v. Ferguson, and if that case was 
controlling he would have, at least, dissented from the 
majority opinion in the case of Buchanan v. Warley. The 
fact that he concurred in the unanimous opinion of the 
Court is conclusive evidence that he considered the Ples»y 
V . Ferguson case not in point.



24

We note that your Honors state on page 15 of your 
opinion that:

“Strange to say, and we say it with great re­
spect—the author of the opinion in Buchanan v. 
Warley also quoted at length from Strauder v. West 
Virginia, 100 U. S. 303, 25 Law. Ed. 664, 3 Am. 
Grim. Rep. 515, and Ex parte Virginia, 100 U. S. 
339, 25 Law. Ed. 676, 3 Am. Grim. Rep. 547; in 
which the rulings as we have said, were founded 
only upon the Act of March 1st, 1875, and are 
therefore not at all pertinent to the case before us.”

Justice Day, as the organ of the Gourt, referred to the 
above cases merely to show that while the Fourteenth 
Amendment did not define rights, it still left to Gongress 
the duty of legislating in connection therewith; that Gon­
gress in those particular cases, had defined another right 
for citizens of the United States: The right to serve on 
petit and grand juries; and that that right could not be 
denied to such citizens.

You should hold that these statutes and that ordinance 
are unconstitutional, null and void and of no effect be­
cause in violation of the Fourteenth Amendment of the 
Gonstitution of the United States for the following reasons:

1st. Because upon a proper construction of the 
Fourteenth Amendment to the Gonstitution of the 
United States and of the acts carrying it into effect, 
the right to use and to occupy his property or to 
lease it to others, is guaranteed to both the white 
and to the colored man; and that no state or munic-



25

ipality can interfere with that right, on the sole 
ground of race or color.

2nd. Because, under a proper interpretation of 
the Fourteenth Amendment of the Constitution of 
the United States, under the facts now before you, 
Plessy V . Ferguson, upon which you relied in your 
decision, is foreign to the issue.

3rd. Because, Buchanan v. Warley, the latest 
expression of the Supreme Court of the United 
States, on the subject, holds such statutes and such 
an ordinance violative of the Fourteenth Amend­
ment of the Constitution of the United States.

4th. Because, under your own jurisprudence, 
Buchanan v. Wttrley is binding upon you, and you 
are compelled to follow it, no matter what your 
personal views of the matter may be. {State v. 
Fullerton, 7 Rob. 219; Saloli v. City of N. 0. 33 
79; LaugMin v. Ice Co. 35 Ann. 1185; State v. Ar- 
dion, 51 Ann. 169; West v. Lehmer, 115 La. 225; 
Jones V . Railway Co. 143 La. 397; Simmons v. Rail­
way, 149 La. 688; 15 Corpus Juris, pp. 930-1-2 and 
936.)

It is submitted that the law of the land, applicable to 
the issue now before you, on all its points, is as follows:

“A city ordinance which forbids colored persons 
to occupy houses in blocks where the greater num­
ber of houses are occupied by white persons, in 
practical effect prevents the sale of lots in such 
blocks to colored persons, and is unconstitutional. 
A white owner who has made as otherwise valid 
and enforceable contract to convey such a lot to a 
colored p<;r»on, for the erection of a house upon it



26

for occupancy by the vendee, is deprived, in viola­
tion of the Fourteenth Amendment, of an essentia! 
element of his property— t̂he right to dispose of it 
to a constitutionally qualified person, and may at­
tack the prohibition under the Fourteenth Amend­
ment in a suit for specific performance of the con­
tract against the vendee.”

“A city ordinance forbidding colored persons 
from occupying houses as residences, or places of 
abode or public assembly, on blocks where the 
majority of the houses are occupied by white 
persons for those purposes, and in like manner 
prohibiting white persons when the conditions as 
to occupancy are reversed, and which base the 
interdiction upon color and nothing more, passes 
the legitimate bound of police power and Invades 
tbe civil right to acquire, enjoy and use property, 
which is guaranteed in equal measure to all citi­
zens, white or colored by the Fourteenth Amend­
ment.

“Such a prohibition cannot be sustained upon the 
grounds that through race segregation, it serves to 
diminish miscegenation and promotes the public 
peace by averting race hostility and conflict, or 
that it prevents deterioration in value of property 
only when occupied by white people; nor does the 
fact that upon its face it applies impartially to 
both races relieve it of the vice or discrimination 
or obviate the objection tbat it deprives of prop­
erty without due process of law.”

Bucharmn v. Worley, 245 U. S. 60-61.

By following that jurisprudence, you will cause more 
respect by the laymen for the decisions of the courts of



27

these United States, from the highest to the lowest tribunal. 
If that decision is wrong, on principle, or in conflict with 
its other jurisprudence, the Supreme Court of the United 
States will, undoubtedly reverse it. By refusing to follow 
Buchanan v. Warley, you will not only break your own 
line of decisions which command you to follow it, but you 
will also be the pioneers in new jurisprudence.

Before closing this brief, we thank your Honors for the 
courtesy granted to us in extending the time for the filing 
of this brief. We trust that the additional delay has en­
abled us to present this matter to your Honors, from our 
viewpoint, more thoroughly, and that we have succeeded 
in convincing you of the serious errors that you have 
committed, in your prior opinion, and which were so pre­
judicial to the interest of our client.

It is respectfully submitted that a rehearing should 
be granted in this matter, and that, in due course, the 
judgment appealed from be amended by maintaining all 
of defendant and appellee’s exceptions and that, as thus 
amended, said judgment be affirmed, at the cost of plain­
tiff and appellant, in both courts.

Eespectfully submitted,
W YH  CHAHBON.N'ET,
y .  y .  'I'Eu-H/ftii,
F. B, HMnS!,

Pjy/myey* for



V.